The U.S. Supreme Court heard oral arguments in the case of Cuozzo Speed v. Lee on April 25, 2016. Cuozzo involves a patent that was invalidated by the Patent Trial and Appeal Board (PTAB) under Inter Partes Review (IPR). At issue in the case is: (1) the standard by which claims are construed at the PTAB in AIA reviews; and (2) whether and when AIA reviews are subject to judicial review.

On the first question, despite near unanimity among the 24 amicus briefs that the PTAB should use the same “plain and ordinary meaning” claim construction as U.S. district courts, Chief Justice Roberts appeared essentially alone on the bench in challenging the Respondent, the United States Patent and Trademark Office (USPTO), in its use of the different “broadest reasonable interpretation" claim construction standard.  Cuozzo argued that its patent would have survived IPR if the district court standard had been applied. Chief Justice Roberts characterized the controversy as “a very extraordinary animal in legal culture to have two different proceedings addressing the same question that lead to different results.”

However, even if the Court were to decide in favor of Cuozzo, it is unlikely that a uniform claim construction standard would resolve the issue most concerning the Chief Justice.  U.S. district courts are required to give issued patent claims the presumption of validity, whereas the PTAB has no such requirement.  Without this presumption of validity, the threshold to invalidate a patent claim will remain significantly lower at the PTAB, irrespective of the claim construction standard. Questions by Justices Sotamayor and Alito indicated skepticism that the two different claim construction standards account for differing outcomes between the tribunals.  Justice Ginsburg further noted that, even in such cases, the USPTO still gets "the last word."

Additional questions to Cuozzo by Justices Sotamayor, Breyer, Kennedy, and Kagan implied deference to both the USPTO, and also to the public policy behind the AIA which made it easier and less expensive to invalidate patents considered "weak." With respect to invalidity rulings made by the PTAB under the broader standard, Justice Kennedy asked Cuozzo “doesn’t that mean the USPTO should never have issued the patent in the first place?”

Probably the most difficult question to Cuozzo though, came from Justice Ginsburg, who asked how, if a universal “ordinary meaning” standard for claim construction was adopted, would it “determine who’s going to win or lose this case?” Counself for Cuozzo admitted that a verdict in its favor would only result in a remand to the PTAB for further review. The case history, however, does not indicate that such further review will automatically result in a different final ruling by the PTAB.

The second question before the Court received little attention at oral arguments. Only Justices Ginsburg and Sotamayor questioned the parties about judicial review, and both parties acknowledged that some level of judicial review is available. The parties only disagreed about what level of judicial review was available, and when.

Judging by the Justices’ questions, it appears that Chief Justice Roberts’ “extraordinary animal” will not be tamed by this case.